JUDGMENT N.C. Mukherji, J. This Rule arises on an application under S. 401 of the Code of Criminal Procedure, 1973 and is directed against an order of conviction under Ss. 406/34 I.P C. sentencing the petitioner to rigorous imprisonment for three months and a fine of Rs. 500/-. in default to rigorous imprisonment for three months more passed by Sri M.A. Vidyadharan, Judicial Magistrate, Asansol on 9.11.78 in case No. C/5227/72 and affirmed on appeal by Sri D.K. Chakraborty, Additional Sessions Judge, Asansol on 20.3.80 in Criminal Appeal No.3 of 1979/102 of 1978. 2. The prosecution case is that the India Refractories, Kulti placed an order for a Hindusthan Ambassador car with M/s. Pandit Brothers, Asansol in 1972. On 22.1.72 M/s Pandit Brothers, vide their letter desired payment of advance money towards the price of the car and empowered their agent, A.K. Mazumdar (since deceased) to receive the Cheque on their behalf. On 27.5.72 a cheque for Rs. 20,800/- was issued in favour of Pandit Brothers by the complainant firm and the cheque was drawn by the Pandit Brothers on 29.5.72 through Canara Bank, 71, Canning Street, Calcutta. On 3rd. August, 1972 M/s. Pandit Brothers delivered it detective car to the India Refractories which was returned on the promise that the said car could be replaced by 10.8.72. However, the Pundit Brothers failed to make replacement of the car or to repay the sum received by them in spite of repeated reminders and requests made by India Refractories. Finally on 19.9.72 Pandit Brothers issued a cheque for Rs. 20,800/- in favour of India Refractories through Dena Bank but on 27.9.72 the said Bank sent the cheque dishonored stating to 'refer to the drawer as on that date Pandit Brothers was having Rs. 333.32 paise only in their credit In Dena Bank. The accused J.G. Pandit alias Lalbhai Pandit is one of the partners of Pandit Brothers while the other partners H.G. Pandit and Ramesh Bhai Pandit induced the India Refractories personally to make payment of advance money and they did Issue the cheque on Dena Bank which was subsequently dishonored for want of funds. The accused Y.G. Pandit and Ramesh Bhai Pandit were absconding and as such the case against them was filed by the learned Sub-Divisional Judicial Magistrate. So the present petitioner only faced the trial. 3. The accused Y.G. Pandit and Ramesh Bhai Pandit were absconding and as such the case against them was filed by the learned Sub-Divisional Judicial Magistrate. So the present petitioner only faced the trial. 3. The defence is that he has got no connection with Pandit Brothers and that he is innocent and to put pressure on him, this false case has been filed. 4. The learned Magistrate found “it is, therefore, proved beyond reasonable doubt that the Pandit Brothers acting through Y.G. Pandit, and Ramesh Bhai Pandit and their representative. A.K. Mazumdar had misappropriated the sum of Rs. 20,800/- entrusted to them by India Refractories towards performance of a specific contract or trust as to delivery of car, thus commit ting the offence of criminal breach of trust defined under S. 405 I.P.C " It has also been found by the learned Magistrate that the accused is one of the partners of Pandit Brothers and as such he is jointly and severally liable to the liabilities of the from. He has further found "In the face of such express liability, it is not open to a partner of a partnership firm to say that he is not liable to the liabilities of the firm, as his other partners who embezzled in funds had absconded or fled away". The learned Magistrate next found “It is proved by evidence documentary as well as oral that the accused J.G. Pandit and Ramesh Bhai Pandit acted in a fiduciary capacity in committing the criminal breach of trust which was accomplished. And the present accused J.G. Pandit alias Lalbhai Pandit being a partner in the M/s. Pandit Brothers, a partnership firm he is having constructive liability in his fiduciary capacity for the offence of criminal breach of trust in respect of Rs. 20.800/- committed in furtherance of the common intention of all the partners and for misappropriation of the sum. And the present accused J.G. Pandit alias Lalbhai Pandit being a partner in the M/s. Pandit Brothers, a partnership firm he is having constructive liability in his fiduciary capacity for the offence of criminal breach of trust in respect of Rs. 20.800/- committed in furtherance of the common intention of all the partners and for misappropriation of the sum. i.e. embezzlement to the pecuniary advantage of the firm in question This brings the accused J.G Pandit, one of the partners of the film within the mischief of S.406/34 I.P.C. according to the principle of joint criminal liability which was established beyond reasonable doubt In that view of his finding, the learned Magistrate convicted and sentenced the accused-petitioner under S. 406/34 I.P.C Being aggrieved the petitioner preferred an appeal before the learned Sessions Judge The appeal was heard by the learned Additional Sessions Judge who affirmed the order of conviction and sentence passed by the learned Magistrate. Hence the present Rule. 5. Regarding the question of joint and several liability of the accused petitioner, the learned Additional Sessions Judge agreed with the learned Magistrate and found that as the petitioner is one of the partners he is criminally liable for the offence of criminal breach of trust though the other two partners were entrusted with the sum and it was they who induced the complainant firm to part with the money. 6. Mr. Dilip Kr. Dutta, learned Advocate appearing on behalf of the petitioner contends that it is true that a partner is severally and jointly liable for all the liabilities of the firm under S.25 of the Partnership Act but when other partners commit a criminal offence, another person simply because he is a partner of the firm cannot be vicariously liable for the said criminal offence. In support of his contention, Mr. Dutta refers to a decision reported in 1977 Cr LJ (Noc) 77 (Orissa) (State of Orissa v. Abhoy Banerjee & anr). In this case the District Magistrate gave an allotment of G.C.I. sheets by Government under a quota certificate to a partner of a firm appointed as handling and procuring agents for fetching G.C.I sheets from Calcutta. It was alleged that the partners dishonestly misappropriated the G.C.I sheets to their own account The prosecution proved its case beyond reasonable doubt against one of the partners only. It was alleged that the partners dishonestly misappropriated the G.C.I sheets to their own account The prosecution proved its case beyond reasonable doubt against one of the partners only. The prosecution could not prove that the other partners took any active part in the transaction. It was held that the mere fact that the accused figured as partner of the firm cannot be made a basis to hold that he also committed an offence under S.409 I.P.C. In this connection, Mr. Dutra submits that a company or a partnership firm call never be held responsible for a criminal offence. In support of his contention he refers to a decision reported 1974 CHN 400 (M/s. Champa Agency & anr v. R. Choudhury & anr). In this case the goods were entrusted to a public carrier and the goods were not delivered to the consignee. The point for decision was whether a company or a corporate body can be prosecuted for an offence under the Indian Penal Code where mens rea is an essential ingredient. It was held that though the company can be prosecuted or punished under several acts, such as the Prevention of Food Adulteration Act, 1954, Foreign Exchange Regulation Act, 1947 etc, a company cannot be convicted for any offence under the Indian Penal Code as mens rea is the essential ingredient of the offence, specially for criminal breach of trust. It was held that the accused petitioner No.1 being a corporate body cannot he said to have the necessary mens rea and as such it cannot be prosecuted for an offence under S. 407 IPC In this case also it cannot be said that the partnership firm committed any offence under S 406 I.P.C. When the prosecution case is that the other two partners were entrusted with the money and they misappropriated the amount, simply because the petitioner is one of the partners, he cannot be held vicariously responsible for the offence of breach of trust. 7. In the result, the application succeeds and the Rule is made absolute. The order of conviction and sentence passed by the learned Magistrate and affirmed by the learned Additional Sessions Judge is set aside. The petitioner is, acquitted of the charge. The petitioner is discharged from his bail bond. Fine, if realised, be refunded. N.G. Chaudhuri. J. I agree, Rule made absolute.